Panel delays Willingham decision after AG ruling

Updated 10:48 pm, Friday, September 9, 2011

AUSTIN - The sometimes stalled, always incremental state review of state and local arson investigations that helped send a Corsicana man to his execution for killing his three young children in a 1991 house fire moved tantalizingly close to resolution Friday – then froze in place until October.

The report reiterated 17 recommendations for state and local arson investigators to improve their science, then sidestepped the controversial question of whether arson cops had been negligent or guilty of professional misconduct in the case.

Peerwani and Texas Fire Marshal Paul Maldonado conferred on the recommendations this week, with the fire executive pledging to share any "process improvements" with fire departments throughout the state.

Citing a recent Texas attorney general's opinion indicating the Willingham case was outside the commission's jurisdiction, the draft said no determination of negligence would be made.

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Three reviews of the arson investigation, including one commissioned by the panel, found the arson investigation lacking.

Commissioners stopped short of officially approving the draft Friday, saying they wanted to revise the document to reflect ways in which the state fire marshal's office was moving to comply with their recommendations. The panel has no enforcement power.

Fearing litigation

The attorney general's opinion, which was requested by commission members, said the panel may not take action in reference to evidence offered or entered into evidence before Sept. 1, 2005, and that its scope is limited to laboratories that were state-accredited at the time forensic analysis took place.

Commissioners on Friday worried they could be personally be liable to litigation if they went beyond the 17 recommendations already offered.

Those recommendations include calls for peer-reviews, improved training and collaboration and a so-called "duty to inform" courts and prosecutors as improved forensic procedures call earlier findings into question.

Watchdog disappointed

Steve Saloom, policy director for the New York-based Innocence Project, which filed the Willingham complaint, expressed disappointment in the draft.

"The commission is on the right track," he said, "but the job is not done."

Saloom called the attorney general's opinion was "specious," and said commissioners could move forward in making a definitive decision in the case without fear of litigation.

"They are clearly gun-shy in the wake of the attorney general's decision," he said.

Saloom said commissioners' unease about the question of negligence is "John Bradley's legacy."

Bradley, until this summer the commission's chairman, frequently was at odds with scientists on the panel regarding the Willingham case.

He has said he agreed with the attorney general's ruling and that going forward with the case would "really threaten the rule of law."